Hawaiian Kingdom Legal Team Complete

Dr. Keanu Sai recently returned from London after meeting with the Matrix Chambers who has joined his legal team in the international commission of inquiry proceedings stemming from the Larsen v. Hawaiian Kingdom (1999-2001) case held under the auspices of the Permanent Court of Arbitration. Matrix Chambers is one of the leading law firms in the United Kingdom and has represented countries before international courts and tribunals.

These proceedings were initiated on January 19, 2017 by Special Agreement between the Provisional Government of the Hawaiian Kingdom and Lance Paul Larsen. Both Parties agreed to the rules provided under Part III—International Commissions of Inquiry (Articles 9-36) of the 1907 Hague Convention for the Pacific Settlement of International Disputes. Once the Commission of Inquiry has been formed they will hold their hearings in the Hawaiian Kingdom. The formation of the Commission is moving forward. According to the Special Agreement,

“The Commission is requested to determine: First, what is the function and role of the Government of the Hawaiian Kingdom in accordance with the basic norm and framework of international humanitarian law; and, Second, what are the duties and obligations of the Government of the Hawaiian Kingdom toward Lance Paul Larsen, and, by extension, toward all Hawaiian subjects domiciled in Hawaiian territory and abroad in accordance with the basic norm and framework of international humanitarian law.”

Dr. Sai heads the Hawaiian Kingdom legal team as Agent, Professor Federico Lenzerini from the University of Siena Law School in Italy is the Deputy-Agent, and Ben Emmerson, QC, from the Matrix Chambers is Counsel. Mr. Emmerson is the former United Nations Special Rapporteur on Counter Terrorism and Human Rights. He was also elected by the United Nations General Assembly as one of the Judges for the International Criminal Court for Rwanda and the International Criminal Court for the former Yugoslavia. His expertise is in international criminal law and served as Special Advisor to the Prosecutor of the International Criminal Court.

The first allegations of war crimes committed in Hawai‘i, being unfair trial, unlawful confinement and pillaging, were made the subject of an arbitral dispute in Lance Larsen vs. Hawaiian Kingdom at the Permanent Court of Arbitration (PCA). Oral hearings were held at the PCA on December 7, 8, and 11, 2000. As an intergovernmental organization, the PCA must possess institutional jurisdiction before it can form ad hoc tribunals. The jurisdiction of the PCA is distinguished from the subject-matter jurisdiction of the ad hoc tribunal over the dispute between the parties.

Disputes capable of being accepted under the PCA’s institutional jurisdiction include disputes between: any two or more states; a state and an international organization, such as an agency of the United Nations; two or more international organizations; a state and a private party; and an international organization and a private entity. The PCA accepted the case as a dispute between a state and a private party, and acknowledged the Hawaiian Kingdom as a non-Contracting Power under Article 47 of the 1907 Hague Convention for the Pacific Settlement of International Disputes. As stated on the PCA’s website:

“Lance Paul Larsen, a resident of Hawaii, brought a claim against the Hawaiian Kingdom by its Council of Regency (“Hawaiian Kingdom”) on the grounds that the Government of the Hawaiian Kingdom is in continual violation of: (a) its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, as well as the principles of international law laid down in the Vienna Convention on the Law of Treaties, 1969 and (b) the principles of international comity, for allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.”

The Government of the Hawaiian Kingdom, as it stood on January 17 1893, was restored in 1995, in situ and not in exile. An acting Council of Regency comprised of four Ministers—Interior, Foreign Affairs, Finance and the Attorney General—was established in accordance with the Hawaiian constitution and the doctrine of necessity to serve in the absence of the executive monarch. By virtue of this process a Provisional Government, comprised of officers de facto, was established. According to U.S. constitutional scholar Thomas Cooley,

“A provisional government is supposed to be a government de facto for the time being; a government that in some emergency is set up to preserve order; to continue the relations of the people it acts for with foreign nations until there shall be time and opportunity for the creation of a permanent government. It is not in general supposed to have authority beyond that of a mere temporary nature resulting from some great necessity, and its authority is limited to the necessity.”

Like other governments formed in exile during foreign occupations, the Hawaiian government did not receive its mandate from the Hawaiian citizenry, but rather by virtue of Hawaiian constitutional law, and therefore represents the Hawaiian state. The Provisional Government is not a new government, but rather a restoration of the Hawaiian Government that existed on January 17, 1893, before it was illegally seized and transformed into an insurgency by the United States. In 2001, Bederman and Hilbert reported in the American Journal of International Law,

“At the center of the PCA proceedings was … that the Hawaiian Kingdom continues to exist and that the Hawaiian Council of Regency (representing the Hawaiian Kingdom) is legally responsible under international law for the protection of Hawaiian subjects, including the claimant. In other words, the Hawaiian Kingdom was legally obligated to protect Larsen from the United States’ ‘unlawful imposition [over him] of [its] municipal laws’ through its political subdivision, the State of Hawaii. As a result of this responsibility, Larsen submitted, the Hawaiian Council of Regency should be liable for any international law violations that the United States had committed against him.”

The Tribunal concluded that it did not possess subject matter jurisdiction in the case because of the indispensible third party rule. The Tribunal explained:

“It follows that the Tribunal cannot determine whether the respondent [the Hawaiian Kingdom] has failed to discharge its obligations towards the claimant [Larsen] without ruling on the legality of the acts of the United States of America. Yet that is precisely what the Monetary Gold principle precludes the Tribunal from doing. As the International Court of Justice explained in the East Timor case, ‘the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case.’”

The Tribunal, however, acknowledged that the parties to the arbitration could pursue fact-finding. The Tribunal stated, “At one stage of the proceedings the question was raised whether some of the issues which the parties wished to present might not be dealt with by way of a fact-finding process. In addition to its role as a facilitator of international arbitration and conciliation, the Permanent Court of Arbitration has various procedures for fact-finding, both as between States and otherwise.”

The Tribunal noted “that the interstate fact-finding commissions so far held under the auspices of the Permanent Court of Arbitration have not confined themselves to pure questions of fact but have gone on, expressly or by clear implication, to deal with issues of responsibility for those facts.” The Tribunal pointed out that “Part III of each of the Hague Conventions of 1899 and 1907 provide for International Commissions of Inquiry.”

To date, there have only been five international commissions of inquiry held under the auspices of the PCA—the first in 1905, The Dogger Bank Case (Great Britain – Russia), and the last in 1962, Red Crusader’ Incident (Great Britain – Denmark). These commissions of inquiry formed under the 1907 Hague Convention for the Pacific Settlement of International Disputes serve in similar fashion to grand juries where they not only inquire into the facts of the case but also assign criminal or civil liability for another court or tribunal to prosecute.

Big Island Video News (BIVN): Teacher’s Union to Document Illegal Occupation

HILO, Hawaii – The political scientist, acting as an agent for the government of the Hawaiian Kingdom in international proceedings, believes the time is right to go forward with an International Commission of Inquiry at the Hague.

(BIVN) – “This is big,” announced Dr. Keanu Sai in the gymnasium of the Boys & Girls Club in Hilo on Saturday.

Sai, one of several featured speakers in a two day educational seminar organized in celebration of the Hawaiian holiday of La Ho‘iho‘i ‘Ea, was talking about the news that came from the National Education Association’s Annual Meeting and Representative Assembly in Boston, Massachusetts on July 4th.

A group with the Hawai‘i State Teachers Association – the NEA affiliate union representing the public school teachers of Hawaii – successfully convinced the teachers of America to approve New Business Item 37, which stated:

“The NEA will publish an article that documents the illegal overthrow of the Hawaiian Monarchy in 1893, the prolonged illegal occupation of the United States in the Hawaiian Kingdom and the harmful effects that this occupation has had on the Hawaiian people and resources of the land.”

HSTA credited Chris Santomauro, a teacher at Kaneohe Elementary, with introducing the proposal and Uluhani Waialeale, a teacher at Kualapuu charter school on Moloka’i, for presenting an “impassioned and articulate argument in favor of the Hawaiian overthrow measure” which “swayed a majority of teachers from across the country to support it.”

“That’s big. This is not political, this is education,” Sai said as he explained the HSTA proposal to those gathered for his talk in Hilo.

According to Sai, the HSTA Secretary/Treasurer is Amy Perruso, a teacher from Mililani High School. She was one of the first teachers to begin teaching about the illegal overthrow of the government of the Hawaiian Kingdom and the illegal American occupation that followed. Perruso even teaches from Sai’s textbook, Ua Mau Ke Ea—Sovereignty Endures: An Overview of the Political and Legal History of the Hawaiian Islands.

“I pretty much can guarantee you that the teachers that are teaching about Hawaii’s occupation probably came through one of our classes at the University of Hawaii,” Sai said, claiming he had nothing to do with the HSTA’s plan to draw up the agenda item. “That’s the impact right there,” Sai said, “where they are taking their kuleana and maximizing it.”

Ever since Sai’s first trip to the Permanent Court of Arbitration in 2001, where he represented the Hawaiian Kingdom government in the Larsen v the Hawaiian Kingdom case, Sai has made the education of Hawaii’s people his top priority.

Now, inspired by stories like the one of the HSTA in Boston, Sai feels affirmed that “it’s time to go fact-finding.”

“I think the time is right. Let’s enter into an agreement with Lance Larsen, go fact-finding,” Sai said, adding that during the 2001 proceedings before the the Permanent Court of Arbitration, the tribunal “didn’t say you can create the fact-finding within 20 years. It said all it needs is an agreement.”

Sai said two of the arbitrators are now sitting judges on the International Court of Justice.

“So, what we’re going to do is convene the original arbitrators who made the statement to be that Commission of Inquiry,” Sai said. “Because I found out that sitting judges on the International Court of Justice can also serve as arbitrators and commissioners at the permanent Court of Arbitration.”

Commissions of inquiry under the auspices of the Permanent Court serve in a similar capacity as grand juries, Sai told the audience. Commissions of Inquiry not only review sets of facts, but also assign responsibilities regarding these facts. That could be civil liability or criminal liability in international law, Sai said.

To date there have only been five International Commission’s of Inquiry, Sai said. The first was Great Britain and Russia in 1905. The most recent was Great Britain and Denmark in 1962.

“This is not… a happy time, but this is a serious time,” Sai said. “Now, what’s important here is, this agreement which will form three commissioners under the Hague Convention… they will answer the first question. First, what is the function and role of the government of the Hawaiian Kingdom in accordance with the basic norm and framework of international humanitarian law?”

Humanitarian law is the law of occupation and laws of war, Sai said. “Before you can address what is the role of the Hawaiian government during occupation, you have to do that in the light of what happened since 1893. You have to address what the United States did or didn’t do that got us into this situation of possible culpability of the Hawaiian government toward one of its Nationals. Is it our fault that everybody’s brainwashed?

Who’s responsible for that?”

Before the commission can answer that question, they have to “address over a hundred years of non-compliance to humanitarian law,” Sai said. “That’s how it works. Then, in light of all this… what do we do? Are we liable?”

Sai says the commission will also ask, “what are the duties and obligations of the government of the Hawaiian Kingdom toward Lance Larson and – by extension – toward all Hawaiian subjects residing in Hawaii, and abroad?”

“What do we do about Lance Larson? Do we sign a reparation where we now have to pay him?” Sai asked. “Do we report the crimes to the International Criminal Court for prosecution? Where do we go?”

“Let them tell us,” Sai said. “They have the authority. We’re in the procedures. So, I don’t know what they’re going to say. I don’t. Just as I didn’t know what they would say during the proceedings of arbitration. I just know I have to take every step to protect the Hawaiian government. Because we’re in it. We’re now being put to that test.”

Sai added that once the Commission has been convened, they are going to make an important recommendation. “We’re gonna have the hearings in Hawaii,” Sai said, to a round of applause.

“I mean, this is not a political stunt. This is procedural,” Sai said. “Because… back in the year 2000, we entertained whether or not the tribunal could have their hearings in Hawaii. That was under consideration. And, after complete review, we said ‘no, there is confusion at home’. Now, I think our people are ready. They have the knowledge, they have the understanding.”

Sai again pointed to the recent HSTA victory in getting their “illegal occupation” proposal passed at the NEA meeting in Boston.

“Can you now understand,” Sai asked the crowd, “the Commission of Inquiry will probably be looking into these very issues.”

Big Island Video News (BIVN): Denationalization in the Hawaiian Kingdom

HILO, Hawaii – Kauai’s talk was entitled “Understanding the impact of denationalization in the Hawaiian Kingdom”.

(BIVN) – As a part of the two day La Hoʻihoʻi ʻEa educational seminar held at the Boys & Girls Club in Hilo, Dr. Wille Kauai gives a talk, Understanding the impact of denationalization in the Hawaiian Kingdom.

The presenter delved into the history and issues surrounding nationality, race, and citizenship in the context of the prolonged occupation of Hawaii by the Untied States.

Big Island Video News (BIVN): Provisional Government of the Hawaiian Kingdom

HILO, Hawaii – Sai’s talk was entitled “The current role of the Acting Hawaiian Kingdom government in the prolonged occupation”. 

(BIVN) – As a part of the two day La Hoʻihoʻi ʻEa educational seminar held at the Boys & Girls Club in Hilo, Dr. Keanu Sai gives a presentation, The current role of the Acting Hawaiian Kingdom government in the prolonged occupation.

Sai talks about how there is a state of war between the United States and the Hawaiian Kingdom, his efforts as lead agent for the Kingdom at the Permanent Court of Arbitration, and the ongoing education of Lāhui.

Calculating Reparations for 124 years of an Unjust War between the Hawaiian Kingdom and the United States since 1893

 

The ongoing illegal state of war between the Hawaiian Kingdom and the United States since 1893 and the prolonged occupation has violated all norms of international law. As we are approaching the international exposure of the prolonged occupation through the international commission of inquiry proceedings stemming from the Larsen v. Hawaiian Kingdom held under the auspices of the Permanent Court of Arbitration, it is timely to address other wars and subsequent occupations that the United States was involved, which eventually came to an end with the payment of reparations. These were the wars with Japan from 1941-51 and with Italy from 1938-47.

Here follows the reparations for war paid by the Japanese under the 1851 Treaty of Peace and by the Italians under the 1947 Treaty of Peace.

Reparation Payments:

Reparations were made by Japan pursuant to Article 14(a), 1951 Japan Treaty of Peace, which states, “It is recognized that Japan should pay reparations to the Allied Powers for the damage suffering caused by it during the war.” Below are Japanese reparations to countries for 10 years of war (1941-51).

Country Amount in US$ Date of Treaty
Burma $200 million Nov. 5, 1955
Philippines $550 million May 9, 1956
Indonesia $223 million Jan. 20, 1958
Vietnam $39 million May 13, 1959
Average $250 million Mean year—1957
Inflation calculator $2 billion Year—2017

Italian reparations to countries for 9 years of war (1938-47) were made pursuant to Article 74 of the 1947 Italian Treaty of Peace.

Country Amount in US$ Date of Treaty
Soviet Union $100 million Feb. 10, 1947
Albania $5 million
Ethiopia $25 million
Greece $105 million
Yugoslavia $125 million
Average $72 million Year—1947
Inflation calculator $890 million Year—2017

As a basis to calculate the amount of reparations that could be owed to the Hawaiian Kingdom by the United States up to the year of 2017, which is 124 years of war, the Japanese and the Italian reparations paid could serve as a guide by applying their years of war to the years of war with the Hawaiian Kingdom. In the case of Japan, reparations to be paid by the United States could be calculated at $25 billion, which is $200 million annually multiplied by 124 years of war with the Hawaiian Kingdom. In the case of Italy, reparations could be calculated at $12 billion, which is $99 million annually multiplied by 124 years of war with the Hawaiian Kingdom.

This measurement could also be applied to other countries who are parties to the conflict and who have been complicit in the belligerent actions taken by the United States against the Hawaiian Kingdom such as the 20 States that unlawfully recognized the United States surrogate calling itself the so-called Republic of Hawai‘i in 1894. These States include Austria-Hungary, Belgium, Brazil, Chile, China, France, Germany, Guatemala, Italy, Japan, Mexico, Netherlands, Norway-Sweden, Peru, Portugal, Russia, Spain, Switzerland, and the United Kingdom. According to renowned American jurist, Professor Ellery Stowell, Intervention in International Law (1921) at 349, n. 75, a “foreign state which intervenes in support of [insurgents] commits an act of war against the state to which it belongs, and steps outside the law of nations in time of peace.”

Seizing of Assets:

Seizure of Japanese assets in the territories of Allied Powers was also done pursuant to Article 14(a)(2)(I), 1951 Japan Treaty of Peace, which states, “Subject to the provisions of sub-paragraph (II) below, each of the Allied Powers shall have the right to seize, retain, liquidate or otherwise dispose of all property, rights and interests of (a) Japan and Japanese nationals, (b) persons acting for or on behalf of Japan or Japanese nationals, and (c) entities owned or controlled by Japan or Japanese nationals, which on the first coming into force of the present Treaty were subject to its jurisdiction.”

Seizure of Italian assets in the territories of Allied Powers were made pursuant to Article 79, Italian Treaty of Peace, which states, “Each of the Allied and Associated Powers shall have the right to seize, retain, liquidate or take any other action with respect to all property, rights and interests which on the coming into force of the present Treaty are within its territory and belong to Italy or to Italian nationals, and to apply such property or the proceeds thereof to such purposes as it may desire, within the limits of its claims and those of its nationals against Italy or Italian nationals, including debts, other than claims fully satisfied under other Articles of the present Treaty.”

In the United States, Japanese assets seized amounted to $85 million (inflation conversion for 2017—$752 million), and Italian assets seized amounted to $62 million (inflation conversion for 2017—$766 million). Pursuant to Presidential Executive Order no. 9567—Alien Property Custodian (1945), the United States took title by “vesting” of all property of Japan and Germany and their nationals. Under the 1948 War Claims Act proceeds derived from these assets would not be returned, but rather placed in a War Claims Fund from which payments would be made to United States citizens that suffered as a consequence of the war with Japan and Germany.

Assets held by the United States and other States who are parties to the conflict since January 16, 1893, to include their nationals, within the territorial jurisdiction of the Hawaiian Kingdom are yet to be determined. The liquidation of these assets could be utilized in similar fashion as the United States did regarding Japanese and German properties vested under Alien Property Custodian, to compensate Hawaiian subjects who were subjected to forced conscription into the United States armed forces, to include deaths, during World War I, World War II, Korean War and the Vietnam War.

Who Determines a State of War Exists in International Law?

There has been some confusion as to who, in particular, determines whether a state of war exists for international law purposes. Is it a decision made by army commanders, international courts, or the heads of state? To answer this question we first need to understand the term war. By definition, war is a violent contention between two or more countries, called States, which is allowable under international law.

War as it is understood today is different from what it was understood in the nineteenth century when the Hawaiian Kingdom government was unlawfully overthrown by United States armed forces on January 17, 1893. According to Professor Brownlie, “The right of war, as an aspect of sovereignty, which existed in the period before 1914, subject to the doctrine that war was a means of last resort in the enforcement of legal rights, was very rarely asserted either by statesmen or works of authority without some stereotyped plea to a right of self-preservation, and of self-defence, or to necessity or protection of vital interests, or merely alleged injury to rights or national honour and dignity.” (Ian Brownlie, International Law and the Use of Force by States (1963) 41).

In the absence of a system of dispute resolution, such as today’s Permanent Court of Arbitration (est. 1899) or the International Court of Justice (est. 1945), war was seen as a form of judicial procedure, a litigation of sorts between nations that involved lethal punishment. It was a means by which one State could obtain redress for wrongs committed against it. War, however, was considered a course of last resort.

“It was generally thought that a state of war came into existence between two countries if, and only if, one of these countries made it clear that it regarded itself as being in a state of war,” says Judge Greenwood. (Christopher Greenwood, “Scope of Application of Humanitarian Law,” in Dieter Fleck (ed), The Handbook of the International Law of Military Operations (2nd ed., 2008) 45). Representatives of countries in international law are Heads of Governments, whether they are Presidents, Monarchs or Prime Ministers. Any political determination made by these Heads of States that their countries are in a state of war is conclusive. In the case of the United States it would be the President, and in the case of the Hawaiian Kingdom it would be the Monarch.

International law differentiates a “declaration of war” from a “state of war.” According to McNair and Watts, “the absence of a declaration…will not of itself render the ensuing conflict any less a war.” In other words, since a state of war is based upon concrete facts of military action there is no requirement for a formal declaration of war to be made. In 1946, a United States Federal Court had to determine whether a United States naval captain’s life insurance policy, which excluded coverage if death came about as a result of war, covered his death during the Japanese attack of Pearl Harbor on December 7, 1945. The family of the captain was arguing that the United States was not a war at the time of his death because the Congress did not declare war against Japan until the following day. The Court denied the family’s claim and determined, “that the formal declaration by the Congress on December 8th was not an essential prerequisite to a political determination of the existence of a state of war commencing with the attack on Pearl Harbor.” (New York Life Ins. Co. v. Bennion, 158 F.2d 260 (C.C.A. 10th, 1946), 41 American Journal of International Law (1947), 682).

On the 100th anniversary of the United States unlawful overthrow of the Hawaiian Kingdom government in 1893, the United States Congress enacted a joint resolution offering an apology. Of significance in the resolution was a particular “whereas” clause, which stated “Whereas, in a message to Congress on December 18, 1893, President Grover Cleveland reportedly fully and accurately on the illegal acts of the conspirators, described such acts as an ‘act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, and acknowledged that by such acts the government of a peaceful and friendly people was overthrown.” (Annexure 2Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 612).

At first read, it would appear that the “conspirators” were the subjects that committed the “act of war,” but this is misleading. First, under international law, only a country can commit an “act of war”, whether through its military and/or its diplomats; and, second, under municipal laws, which are the laws applicable to a particular country, conspirators within a country could only commit treason not “acts of war.” These two concepts are reflected in the terms coup de main and coup d’état. The former is a successful invasion by an outside military force, while the former is a successful internal revolt, which was also referred to in the nineteenth century as a revolution. According to the United States Department of Defense, a coup de main is an “offensive operation that capitalizes on surprise and simultaneous execution of supporting operations to achieve success in one swift stroke.” (U.S. Department of Defense, The Dictionary of Military Terms (2009)).

In a petition to President Cleveland on December 27, 1893, from the Hawaiian Patriotic League, its leadership, comprised of Hawaiian statesmen and lawyers, clearly articulated the difference between a “revolution” and a “coup de main,” and, as such, an international crime was committed. The petition read:

“Last January, a political crime was committed, not only against the legitimate Sovereign of the Hawaiian Kingdom, but also against the whole of the Hawaiian nation, a nation who, for the past sixty years, had enjoyed free and happy constitutional self-government. This was done by a coup de main of U.S. Minister Stevens, in collusion with a cabal of conspirators, mainly faithless sons of missionaries and local politicians angered by continuous political defeat, who, as revenge for being a hopeless minority in the country, resolved to ‘rule or ruin’ through foreign help. The facts of this ‘revolution,’ as it is improperly called, are now a matter of history.” (Petition of the Hawaiian Patriotic League to President Cleveland (Dec. 27, 1893), The Executive Documents of the House of Representatives (1895), 1295).

Whether by chance or design, the 1993 Congressional Apology Resolution did not accurately reflect what President Cleveland stated in his message to Congress on December 18, 1893. When Cleveland stated that the “military demonstration upon the soil of Honolulu was of itself an act of war,” he was referring to United States armed forces and not to any of the conspirators. Cleveland noted, “that on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies.” Clearly the act of war was committed by the armed forces of the United States. The landing, however, was just the beginning stage of a coup de main with the ultimate goal of seizing control of the Hawaiian government.

As part of the plan, the U.S. diplomat, John Stevens, would prematurely recognize the small group of insurgents on January 17th as if they were a successful revolution thereby giving it de facto status. International law, however, provides the parameters by which a revolution is deemed to have been successful. Foreign States would acknowledge success when an insurgency has secured complete control of all governmental machinery, no opposition by the lawful government, and has the acquiescence of the national population. According to Professor Lauterpacht, “So long as the revolution has not been successful, and so long as the lawful government…remains within national territory and asserts its authority, it is presumed to represent the State as a whole.” (E. Lauterpacht, Recognition in International Law (1947) 93). With full knowledge of what constitutes a successful revolution, Cleveland provided a blistering indictment:

“When our Minister recognized the provisional government the only basis upon which it rested was the fact that the Committee of Safety…declared it to exist. It was neither a government de facto nor de jure. That it was not in such possession of the Government property and agencies as entitled it to recognition is conclusively proved by a note found in the files of the Legation at Honolulu, addressed by the declared head of the provisional government to Minister Stevens, dated January 17, 1893, in which he acknowledges with expressions of appreciation the Minister’s recognition of the provisional government, and states that it is not yet in the possession of the station house (the place where a large number of the Queen’s troops were quartered), though the same had been demanded of the Queen’s officers in charge.” (Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 605).

“Premature recognition is a tortious act against the lawful government,” explains Professor Lauterpacht, which “is a breach of international law.” (Ibid, 95). And according to Stowell, a “foreign state which intervenes in support of [insurgents] commits an act of war against the state to which it belongs, and steps outside the law of nations in time of peace.” (Ellery C. Stowell, Intervention in International Law (1921) 349, n. 75). Furthermore Stapleton states, “Of all the principles in the code of international law, the most important—the one which the independent existence of all weaker States must depend—is this: no State has a right FORCIBLY to interfere in the internal concerns of another State.” (Augustus Granville Stapleton, Intervention and Non-Intervention (1866) 6).

Cleveland then explained to the Congress the egregious effects these acts of war had upon the Hawaiian government and its apprehension of a “cabal of conspirators” who committed high treason.

“Nevertheless, this wrongful recognition by our Minister placed the Government of the Queen in a position of most perilous perplexity. On the one hand she had possession of the palace, of the barracks, and of the police station, and had at her command at least five hundred fully armed men and several pieces of artillery. Indeed, the whole military force of her kingdom was on her side and at her disposal, while the Committee of Safety, by actual search, had discovered that there were but very few arms in Honolulu that were not in the service of the Government. In this state of things if the Queen could have dealt with the insurgents alone her course would have been plain and the result unmistakable. But the United States had allied itself with her enemies, had recognized them as the true Government of Hawaii, and had put her and her adherents in the position of opposition against lawful authority. She knew that she could not withstand the power of the United States, but she believed that she might safely trust to its justice. Accordingly, some hours after the recognition of the provisional government by the United States Minister, the palace, the barracks, and the police station, with all the military resources of the country, were delivered up by the Queen upon the representation made to her that her cause would thereafter be reviewed at Washington, and while protesting that she surrendered to the superior force of the United States, whose Minister had caused United States troops to be landed at Honolulu and declared that he would support the provisional government, and that she yielded her authority to prevent collision of armed forces and loss of life and only until such time as the United States, upon the facts being presented to it, should undo the action of its representative and reinstate her in the authority she claimed as the constitutional sovereign of the Hawaiian Islands.” (Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 606).

According to Professor Wright, “War begins when any state of the world manifests its intention to make war by some overt act, which may take the form of an act of war.” Quincy Wright, “Changes in the Concept of War,” 18 American Journal of International Law (1924) 758). In his review of customary international law in the nineteenth century, Professor Brownlie concluded, “that in so far a ‘state of war’ had any generally accepted meaning it was a situation regarded by one or both parties to a conflict as constituting a ‘state of war.’” (Brownlie, 38).

Cleveland concluded by an “act of war…the Government of a feeble but friendly and confiding people has been overthrown.”(Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 608). More importantly, Cleveland referred to the Hawaiian people as “friendly and confiding,” not “hostile.” This is a classic case of where the United States President admits an unjust war, but a state of war nevertheless. In the absence of a treaty or agreement to end the state of war that has ensued for over a century, international humanitarian law regulates the Hawaiian situation.

These are the very matters that will come before the International Commission of Inquiry: Incidents of War Crimes in the Hawaiian Islands—The Larsen Case.

From a “State of Peace” to a “State of War” – Hawai‘i and the United States since 1893

As the Tribunal at the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom pointed out in, “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.” (Award, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 581). As an independent State, the Hawaiian Kingdom was a member of the Family of Nations along with other independent States including the United States. According to Westlake in 1894, they comprised, “First, all European States […] Secondly, all American States […] Thirdly, a few Christian States in other parts of the  world, as the Hawaiian Islands, Liberia and the Orange Free State.” (John Westlake, Chapters on the Principles of International Law (1894) 81).

In 1893, there were 44 independent and sovereign States in the Family of Nations: Argentina, Austria-Hungary, Belgium, Bolivia, Brazil, Bulgaria, Chili, Colombia, Costa Rica, Denmark, Ecuador, France, Germany, Great Britain, Greece, Guatemala, Hawaiian Kingdom, Haiti, Honduras, Italy, Liberia, Lichtenstein, Luxembourg, Netherlands, Mexico, Monaco, Montenegro, Nicaragua, Orange Free State that was later annexed by Great Britain in 1900, Paraguay, Peru, Portugal, Romania, Russia, San Domingo, San Salvador, Serbia, Spain, Sweden-Norway, Switzerland, Turkey, United States of America, Uruguay, and Venezuela. In 1945, there were 45, and today there are 193.

From a State of Peace to a State of War—No Middle Ground

International law, which is law between nations, formed the protocol and relations between these member States. “Traditional international law was based upon a rigid distinction between the state of peace and the state of war,” states Judge Greenwood (Christopher Greenwood, “Scope of Application of Humanitarian Law,” in Dieter Fleck (ed), The Handbook of the International Law of Military Operations (2nd ed., 2008) 45). “Countries were either in a state of peace or a state of war; there was no intermediate state.” (Ibid.) This is also reflected by the fact that the renowned jurist of international law, Lassa Oppenheim, separates his treatise on International Law into two volumes, Vol. I—Peace, and Vol. II—War and Neutrality.

Throughout the nineteenth century, the Hawaiian Kingdom was not only independent and sovereign, but also a neutral State explicitly recognized by treaties with Germany, Spain and Sweden-Norway. The Hawaiian Kingdom enjoyed a state of peace with all States. This status of affairs, however, was interrupted by the United States when the state of peace was transformed to a state of war that began on January 16, 1893. On January 17, 1893, Queen Lili‘uokalani, the Executive Monarch of the Hawaiian Kingdom, made the following protest and a conditional yielding of her authority to the President of the United States in response to military action taken against the Hawaiian government by order of the U.S. resident diplomat John Stevens. The Queen’s protest stated:

“I, Liliuokalani, by the grace of God and under the constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a provisional government of and for this Kingdom. That I yield to the superior force of the United States of America, whose minister plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the said provisional government. Now, to avoid any collision of armed forces and perhaps the loss of life, I do, under this protest, and impelled by said force, yield my authority until such time as the Government of the United States shall, upon the facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.” (Annexure 2, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 612).

Under international law, the landing of American troops without the consent of the Hawaiian government was an act of war. But in order for an act of war to transform the status of affairs to a state of war, the act must be unlawful under international law. In other words, an act of war would not change the status of affairs to a state of war from that of peace if the action were legal under international law. According to Professor Wright, “An act of war is an invasion of territory…and so normally illegal. Such an act if not followed by war gives grounds for a claim which can be legally avoided only by proof of some special treaty or necessity justifying the act.” (Quincy Wright, “Changes in the Concept of War,” 18 American Journal of International Law (1924), 756).

Military action in a foreign State considered lawful under international law, includes proportionate reprisals in response to another State’s action just short of all out war, and military actions taken to protect its citizenry in the foreign State. Furthermore, the act of war must have been intentional—animo belligerendi, to overthrow the government of the invaded State. As international law is a law between States, which derives from agreements, the claim made by Queen Lili‘uokalani that United States troops unlawfully invaded the kingdom had to be acknowledged by the President of the United States as true. In her protest she called upon the President to investigate the facts and then “undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.” In international law, this is called restitutio in integrum.

After ten months of investigating the overthrow, President Cleveland notified the Congress on December 18, 1893, that the “military demonstration upon the soil of Honolulu was of itself and act of war” that could not be justified under international law as “either with the consent of the Government of Hawaii or for the bona fide purpose of protecting the imperiled lives and property of citizens of the United States.” (Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 604).

The President then concluded, “By an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown.” (Ibid, 608). He notified the Congress that he initiated negotiations with the Queen “to aid in the restoration of the status existing before the lawless landing of the United States forces at Honolulu on the 16th of January last, if such restoration could be effected upon terms providing for clemency as well as justice to all parties concerned.” (Ibid, 610). What Cleveland did not know at the time of his message to the Congress was that the Queen, on the very same day in Honolulu, accepted the conditions for settlement in an attempt to return to a state of peace. The executive mediation began on November 13, 1893 between the Queen and U.S. diplomat Albert Willis. The President was not aware of the agreement until January 12, 1894.

Despite being unaware of the agreement to settle, President Cleveland’s political determination was an acknowledgment that the United States was in a state of war with the Hawaiian Kingdom since the invasion occurred on January 16, 1893, as stated by the Queen in her protest on January 17, 1893. International law defines war as “a contention between States for the purpose of overpowering each other.” (L. Oppenheim, International Law, vol. II—War and Neutrality (3rd ed., 1921) 74).

Once a state of war ensued between the Hawaiian Kingdom and the United States, “the law of peace ceased to apply between them and their relations with one another became subject to the laws of war, while their relations with other states not party to the conflict became governed by the law of neutrality.” (Greenwood, 45). This outbreak of a state of war between the Hawaiian Kingdom and the United States would “lead to many rules of the ordinary law of peace being superseded…by rules of humanitarian law.” (Ibid, 46).

A state of war “automatically brings about the full operation of all the rules of war and neutrality.” (Myers S. McDougal, “The Initiation of Coercion: A Multi-temporal Analysis,” 52 American Journal of International Law (1948) 247). And according to Venturini, “If an armed conflict occurs, the law of armed conflict must be applied from the beginning until the end, when the law of peace resumes in full effect.” (Gabriella Venturini, “The Temporal Scope of Application of the Conventions,” in Andrew Clapham, Paola Gaeta, and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary (2015), 52). Only by a treaty or agreement between the Hawaiian Kingdom and the United States could a state of peace be restored, without which a state of war ensues.

In order to transform the state of war to a state of peace an attempt was made by executive agreement entered into between President Cleveland, by his resident diplomat Albert Willis, and Queen Lili‘uokalani in Honolulu on December 18, 1893 (David Keanu Sai, “A Slippery Path Towards Hawaiian Indigeneity: An Analysis and Comparison between Hawaiian State Sovereignty and Hawaiian Indigeneity and Its Use and Practice Today,” 10 Journal of Law and Social Challenges (2008) 119-127). Cleveland, however, was unable to carry out his duties and obligations to restore the situation that existed before the unlawful landing of American troops due to political wrangling in the Congress. The state of war continued.

It is a common misconception that only through a declaration of war by the Congress could a state of war exist for the United States. A Federal court in 1946, however, dispensed with this theory in New York Life Ins. Co. v. Bennion. The Court stated, “it cannot be denied that the acts and conduct of the President, acting in furtherance of his constitutional authority and duty, would constitute a political determination of a state of war of which the courts would take judicial notice. We can discern no demonstrable difference in the supposition and the actual facts, and we therefore conclude that the formal declaration by the Congress on December 8th was not an essential prerequisite to a political determination of the existence of a state of war commencing with the attack on Pearl Harbor [on December 7th].” (New York Life Ins. Co. v. Bennion, 158 F.2d 260 (C.C.A. 10th, 1946), 41 American Journal of International Law (1947), 682).

Therefore, the conclusion reached by President Cleveland that an act of war had been committed by the United States was a “political determination of the existence of a state of war,” and that a formal declaration of war by the Congress was not essential. The “political determination” by President Cleveland regarding the actions taken by the military forces of the United States on January 16, 1893, was the same as the “political determination” by President Roosevelt regarding actions taken by the military forces of Japan on December 7, 1945. Both “political determinations,” being acts of war, created a state of war for the United States. A declaration of war by the Congress was not essential in both situations.

The Duty of Neutrality by Third States

When the President declared that a state of war existed by an act of war committed by the American military in his message to Congress, all of the other 42 States were under a duty of neutrality. “Since neutrality is an attitude of impartiality, it excludes such assistance and succour to one of the belligerents as is detrimental to the other, and, further such injuries to the one as benefit the other.” (L. Oppenheim, International Law, vol. II—War and Neutrality (3rd ed., 1921) 401).

The duty of a neutral State, not a party to the conflict, “obliges him, in the first instance, to prevent with the means at his disposal the belligerent concerned from committing such a violation,” e.g. to deny recognition of a puppet government unlawfully created by an act of war. (Ibid, 496). Twenty of these States violated their obligation of impartiality by recognizing the so-called Republic of Hawai‘i, a United States puppet government created by an act of war committed by the United States on January 17, 1893. These States include:

“If a neutral neglects this obligation, he himself thereby commits a violation of neutrality, for which he may be made responsible by a belligerent who has suffered through the violation of neutrality committed by the other belligerent and acquiesced in by him.” (Ibid, 497). The recognition of the so-called Republic of Hawai‘i did not create any legality or lawfulness on the part of the puppet regime, but rather is the indisputable evidence that these States’ violated their duty to be neutral. Diplomatic recognition of governments occurs during a state of peace and not during a state of war, unless providing recognition of belligerency status. The recognitions were not recognizing the Republic as a belligerent in a civil war with the Hawaiian Kingdom, but rather under the false pretense that the Republic succeeded in a revolution and therefore was the new government of Hawai‘i during a state of peace. As such, their relationship with the Hawaiian Kingdom has since been regulated by humanitarian law.

State of War—No Question

The state of war has ensued to date, only to be concealed by a false narrative promoted by the United States government that Hawai‘i was purportedly annexed in 1898 through American legislation (Sai, Slippery Path, 84-94), coupled with a formal policy of the war crime of denationalizing school children beginning in 1906. The purpose of the policy was to obliterate the national consciousness of the Hawaiian Kingdom in the minds of the children and replace it with American patriotism. Within three generations, the effect of the denationalization was nearly complete.

The Hawaiian Kingdom has been in a “legal” state of war with the United States for over a century and the application of the laws of occupation and applicable humanitarian law has not diminished. Without a treaty between the Hawaiian Kingdom and the United States to return the state of affairs back to a state of peace, the state of war continues. As Judge Greenwood stated, “Countries were either in a state of peace or a state of war; there was no intermediate state.”

This is the longest state of war ever to have taken place in the history of international relations, which has created a humanitarian crisis of unimaginable proportions. International humanitarian laws apply, which includes customary international law regarding war and neutrality, 1907 Hague Regulations and the 1949 Geneva Conventions.

International Commission of Inquiry: Incidents of War Crimes in the Hawaiian Islands – The Larsen Case

Proceedings to establish an International Commission of Inquiry under Part III of the 1907 Hague Convention for the Pacific Settlement of International Disputes stemming from the Larsen v. Hawaiian Kingdom arbitration held under the auspices of the Permanent Court of Arbitration (1999-2001) were initiated under a Special Agreement dated January 19, 2017. The title for these proceedings is “Incidents of War Crimes in the Hawaiian Islands—The Larsen Case.”

On March 3, 2017, Professor Francesco Francioni was designated by the parties by a supplemental agreement to be the appointing authority, whose function is to form the International Commission of Inquiry. Professor Francioni is an ad hoc judge on the International Tribunal for the Law of the Sea as well as serving as one of five arbitrators in a dispute under the auspices of the Permanent Court of Arbitration, The “Enrica Lexie” Case (Italy v. India). The parties notified the appointing authority that the prospective commissioners shall not United States citizens; must have command of the English language; have expertise in international humanitarian law; and include, at least, one woman.

Article I of the Special Agreement was amended by the parties on March 26, 2017 to allow the Commission to designate a Secretary General to serve as a registry, and for the President of the Commission to work with the Secretary General in order to determine a location for the sitting of the Commission. The only stipulation by the parties is that the sitting shall be in Europe.

Big Island Video News: Trump Inherits Hawaiian Kingdom War Crimes, Scholar Says

HAWAII (BIVN) – “Violations of international law of unimaginable proportions,” Dr. Keanu Sai says, adding Donald Trump “is responsible – as the president – for how the military operates here.”

This is part 3 of our story trilogy presenting a recent video interview with the fascinating – and controversial – political scientist, Dr. David Keanu Sai.

HAWAII – President Donald Trump’s first weeks in office have been a whirlwind of executive action and controversy. From the Oval Office, Trump’s social media tweets – once seen as inconsequential entertainment – can now carry international ramifications. How the new president handles it all remains to be seen. But he hasn’t minced words about the situation his administration is dealing with.

“To be honest, I inherited a mess,” President Trump said during a recent press conference. “It’s a mess, at home and abroad. A mess.”

Dr. Keanu Sai agrees with him, to some extent.

“They’ve inherited war crimes,” Sai said during a recent interview with Big Island Video News. “He did. He inherited it. And he is the successor of presidents since 1893 who have inherited war crimes committed in Hawaiʻi. Violations of international law of unimaginable proportions.”

Sai earned his Ph.D. from the University of Hawaii for his work on proving the continued existence of the Hawaiian Kingdom. Following the illegal overthrow of Queen Liliʻuokalani in 1893, there was never a legal treaty of annexation, Sai says. According to the political scientist, Hawaii is under a prolonged and illegal occupation, under international humanitarian law. Since the U.S. has not upheld the laws of the occupied state, the issue of war crimes under the Geneva Conventions comes into play.

Sai understands why many people don’t see it that way.

The fact that people in Hawaiʻi are clueless as to what Hawaiʻi was in the 19th century is the evidence of the crime. My great-grandparents were born in the Kingdom in 1880. I know nothing about the Kingdom. That wasn’t because I just didn’t know it. It’s because no one taught me. People did not teach anything because everything had to be Americanized. So, we’re the evidence of the crime. For Donald Trump and his administration, he really has nothing to do with Hawaiʻi. Nothing. Because he’s a president in America. The entities that have everything to do with our situation is the United States Pacific Command and the military here, boots on the ground. Because we’re in a sovereign country. We’re a separate country. Donald Trump is in another separate country. But he is responsible – as the president – for how the military operates here. But he also inherited all the liability of the previous presidents.”

– Dr. Keanu Sai, Feb. 2017 BIVN interview

 

Sai and Trump once shared similar, highly controversial positions on another presidential topic, although they arrived at their conclusions for different reasons. At the same time Donald Trump was trying to prove his predecessor in the White House was not born in the United States, Dr. Sai was lecturing on his own version of the “birther” movement.

Donald Trump, he was the birther man, right? I smiled when he first came out with ‘Barack Obama was not born in the United States’. I actually gave a presentation at NYU – also at Harvard – and it was titled ‘Why the birthers are right for all the wrong reasons.’ Barack Obama was born in Hawaiʻi. He was born at Kapiolani Hospital just about three years before I was born there. I was born in 1964. I believe he was born in 1961. He was not born in the United States, period. But I’m not saying he’s not an American. His mom was an American, so he’s an American citizen. There’s no doubt there. But he’s not natural born. Now, not being natural-born affects your status as a president, because under Article 2 of the United States Constitution the president and vice president have to be natural-born citizens. He wasn’t natural born. If he wasn’t natural-born, then he wasn’t president. If he wasn’t president, what was his administration for eight years? But see, that’s not my problem. That’s the United States’ problem.”

– Dr. Keanu Sai, Feb. 2017 BIVN interview

 

Does Sai believe President Trump has been fully apprised of the political situation in Hawaiʻi? He can only guess.

I would think (Trump’s administration) might want to keep this from (Trump), because he might use that to say he was correct against Barack Obama. The intelligence agencies fully apprised, I know, George W. Bush and Barack Obama. No doubt. Because there were international proceedings were taking place. Now, whether or not the intelligence group is advising Donald Trump about this? I don’t know. I would think they wouldn’t want to tell them because he’s going to take it out of context. Because, you’re talking about a powder keg here that can blow; economically, politically and criminally.”

– Dr. Keanu Sai, Feb. 2017 BIVN interview

 

Sai has been trying to educate the public on this subject for years, chronicling his work on the Hawaiian Kingdom blog. His has traveled the world, lecturing on this topic at the University of Cambridge, filing complaints and entering into proceedings at The Hague. He has recently initiated fact finding Commission of Inquiry as provided for by the Permanent Court of Arbitration, which arose out of the Larsen v Hawaiian Kingdom case.

My job is to fix this problem. There is no doubt that the (U.S.) State of Hawaii – although they’re illegal – they’re in control. To use a metaphor: I’m not about to have this plane called “Hawaiian” airlines, who’s flying high in the sky, disguised as if it’s “American” airlines, painted red white and blue. That paint is chipping off … This is Hawaiian airlines. We are still not in control of our plane but it is our plane. The Kingdom’s still exists. We’re not in control of it. I have to be careful that this plane doesn’t take a nosedive – economically, legally and politically – by people who are incompetent. So, I take every step very seriously to address this problem.”

– Dr. Keanu Sai, Feb. 2017 BIVN interview

 

Sai’s attempt to avoid a “nosedive” was recently thrust into the media spotlight. With the spending practises of the Office of Hawaiian Affairs under scrutiny, Sai’s contract to produce a manuscript on land tenure in Hawaii has become a controversy. The manuscript was never submitted for publication, although Sai was still paid $70,000 by OHA.

Sai even called one of the news stories on the controversial contract “fake news”. Something else he has in common with the Donald.

That goes to the heart as to why I refused – at this stage – to submit this manuscript that implicates all these people for war crimes, until I take the necessary steps to ensure that this plane doesn’t crash. That’s what’s important to me. Whether people believe it or not, it doesn’t matter. Can you falsify it? I’m not asking you to agree. And that’s my background. This is my approach as to how I do things. I take a very practical approach. I’m a retired (military captain). I still am an officer. These are some very hard issues and not everybody can grasp it. But there is no doubt that i know it and I’m responsible for it, because I know it. And that that’s what’s important.”

– Dr. Keanu Sai, Feb. 2017 BIVN interview

Big Island Video News: Keanu Sai Responds To OHA Contract Report

HILO (BIVN) – Sai, a Ph.D. of political science from the University of Hawaii, says there is much more to the story of his unfulfilled contract with the Office of Hawaiian Affairs to produce a manuscript on Hawaii land title.

HILO, Hawaii – Political scientists Dr. Keanu Sai is objecting to his portrayal in a recent TV news story that reported on a contract he entered into with the embattled Office of Hawaiian Affairs to produce a manuscript on land tenure in Hawaii.

On February 14, Hawaii News Now reported that OHA – currently under pressure to conduct an audit of administrative expenditures – paid $70,000 to a “former felon at the center of the Hawaiian sovereignty debate for a report he never produced,” according to internal agency documents obtained by Hawaii News Now.

The news story reported “Sai said he dropped the study because it would have justified the current land title system, which he believes is illegal,” and that “he’s not returning the money to OHA.”

After the story aired, Sai fired back with an email to reporter Rick Daysog that he says he blind carbon copied to over 300 other recipients.

“I am very disappointed with your story on Hawai‘i News Now that sought to portray me as a fraud,” Sai wrote. “It was very distasteful, disrespectful and irresponsible.”

Sai said the report failed to state his reasoning for not submitting the manuscript for publication. “I’m protecting State of Hawai‘i officials, which includes the OHA Trustees, from criminal liability for committing the specific crimes of pillaging land revenues under international humanitarian law,” Sai wrote. “I will submit it for publication when I am satisfied that I’ve done all that I can to mitigate the criminal liability of State of Hawai‘i officials, even when they don’t believe I’m trying to help them.”

Sai was particularly unhappy with the reference to his felony conviction under Perfect Title, which he wrote about in detail in his email to Daysog.

“When you brought up Perfect Title Company in the interview, I told you that the attacks I received in the 1990s did not address historical facts and laws that apply to land titles in its title reports that the company produced, but rather the slandering of my name and reputation by constantly saying I was advising people to not pay their mortgages. I never did. In fact, I told you that a mortgage is a “security instrument” or “collateral” that secures the repayment of a loan. The loan is what you pay and not a mortgage. With or without a mortgage the borrower still owes the outstanding money left on the loan. As such, Perfect Title Company was advising its clients that they had title insurance to cover their debt owed under the loan. This is a called a lender’s title insurance policy that the lender requires the borrower to purchase in the event that that there’s a defect in title and the mortgage is, as a result, void. When Perfect Title Company’s clients began to file their insurance claims with their title insurance companies, the title companies in Hawai‘i, such as Title Guaranty led by their attorney John Jubinsky, an all out assault began against myself and Perfect Title Company in order to shift attention away from title companies. At a symposium put on at the Hawai‘i Prince Hotel by the Hawai‘i Developers Council in July of 1997 that centered on Perfect Title Company, Bruce Graham, an attorney and instructor of land titles at the William S. Richardson School of Law School and one of the panelists along with myself, admitted to me after that he could not refute Perfect Title’s land title reports. His only comment to me was that America’s here and that’s just how it is. I was not intimidated by this statement because I knew that America had nothing to do with title insurance. It was the title companies in Hawai‘i that would lose. From title insurance policies to the lie that Perfect Title was telling people not to pay their mortgage was absurd but it persisted even today in your story. This is how shallow your story is.

These malicious attacks in the media by the title companies led to a police raid of our office and my arrest for racketeering, tax evasion and theft. These outlandish allegations were unfounded but it was disseminated throughout the media as if I was part of the mafia. They later dropped these outlandish charges and indicted me on a so-called attempted theft of property by doing a title search and showing that the title was defective as a result of the illegal overthrow of the Hawaiian government in 1893. There were no lawful notaries after the January 17, 1893 to acknowledge the transference of title by deed. All titles could not be conveyed after January 17. The title companies and the State of Hawai‘i could not refute this fact. Furthermore, I told you over the phone that real estate is not the subject of larceny or theft. Only personal property, which is moveable, such as a car or cash, is capable of being stolen, but real property, which is immovable, such as real estate, is not capable of being stolen because you can’t move the land therefore you can’t steal it. The whole process was malicious, and where was the media in all of this. They were all complicit and whenever I was interviewed by reporters such as Barbara Marshall or Rob Perez they always twisted what I said in order to maintain their false narrative. I also remember you told me in the interview that you worked with Rob Perez at the newspaper during this time, which I then became very suspect because you apparently have the same bias.”

– Dr. Keanu Sai email

 

“I can only surmise that your story fits quite well under the heading of Alternative Facts and Fake News because the real facts apparently don’t matter to you,” Sai wrote at the conclusion of his email.

Sai sat down for an interview with Big Island Video News in an attempt to present his side of the story.

During the interview, Sai also discussed his involvement in a future Fact finding to be conducted through the International Court of Arbitration, and – the big news maker these days – President Donald Trump.

NEXT: The Larson Case, Round Two – International Fact Finding

Big Island Video News: Hawaiian Kingdom International Inquiry Discussed

HAWAII ISLAND (BIVN) – A Fact Finding Commission is being initiated at the Permanent Court of Arbitration at The Hague. The new advocate for the Kingdom, Dr. Federico Lenzerini, spoke to Puna residents on Friday.

HAWAII ISLAND – The Counsel and Advocate representing the Hawaiian Kingdom in a recently initiated international fact finding proceeding spoke to a small audience at a Puna home on Friday evening.

Dr. Federico Lenzerini, Professor of International law from the University of Siena Law Department in Italy, talked about the complexities of a new special agreement to form a Commission of Inquiry under the auspices of the Permanent Court of Arbitration at The Hague. Lenzerini spoke in the garage of Kale Gumapac’s Hawaiian Paradise Park home.

Dr. Lenzerini, working alongside Dr. Keanu Sai – a well known political scientist and lecturer at the University of Hawai‘i – said the proceeding picks up where the Larsen v the Hawaiian Kingdom case left off in 2001.

On January 19, 2017, the Hawaiian Kingdom Government and Lance Paul Larsen entered into a Special Agreement to form a Fact-finding Commission that would delve into the alleged occupation of the Hawaiian Kingdom by the United States. Dr. Sai has been working as agent for the Kingdom in the international arbitration.

Over the past week, Lenzerini and Sai have been making the rounds in Hawaii, building awareness of the fact-finding inquiry by filming TV interviews and even making a large presentation at the Kamehameha School Kapalama Campus on January 30.

The Larsen dispute began in 1999. Larsen, a Hawaiian subject, alleged that the Government of the Hawaiian Kingdom is in “continual violation of its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America”, as well as “the principles of international comity” by allowing “the unlawful imposition of American municipal laws … within the territorial jurisdiction of the Hawaiian Kingdom.”

Documents say Larsen “served an illegally imposed jail sentence resulting directly from the continued unlawful imposition and enforcement of American municipal laws within the Hawaiian Kingdom.”

The dispute was taken up by a Tribunal at the Permanent Court of Arbitration. Both parties were seeking a ruling from the tribunal that would “decide and determine the territorial dominion of the Hawaiian Kingdom under all applicable international principles, rules and practices.”

Dr. Keanu Sai represented the Hawaiian Kingdom as its agent in the proceeding. Dr. Sai maintained the party responsible for the violation of the Larsen’s rights, as a Hawaiian subject, was the United States Government. Both Larsen and the Kingdom agreed “the primary cause of these injuries is the prolonged occupation of the Hawaiian Islands by the United States of America.”

The United States was not a party to the agreement to arbitrate, and did not participate in the proceeding.

In its Award, the Tribunal determined that “there is no dispute between the parties capable of submission to arbitration” and that, “the Tribunal is precluded from the consideration of the issues raised by the parties by reason of the fact that the United States of America is not a party to the proceedings and has not consented to them.”

Although the Tribunal’s award did not make a determination involving the occupation, both Dr. Sai and Dr. Lenzerini say the Kingdom was acknowledged as a State for administrative purposes by the Permanent Court of Arbitration. The proceeding also opened the door to a fact finding inquiry.

“At one stage of the proceedings the question was raised whether some of the issues which the parties wished to present might not be dealt with by way of a fact-finding process,” the Tribunal’s award stated.

“In addition to its role as a facilitator of international arbitration and conciliation,” the Award document states, “the Permanent Court of Arbitration has various procedures for fact finding, both as between States and otherwise.”

The Tribunal noted a new special agreement would be needed between Larsen and the Kingdom before fact-finding could be initiated.

The Hague Conventions of 1899 and 1907 provide for International Commissions of Inquiry. However, the costs of the fact-finding process – which amounted in excess of $150,000, participants say, to be bore by the claimant, Mr. Larsen – delayed the action.

In the Special Agreement reached this January, it was decided that the Hawaiian Kingdom will bear the burden of costs for the fact-finding. On January 24, 2017 the International Bureau of the PCA was notified by joint letter to initiate the proceedings. A $10,000 advance deposit has already been made towards the costs.

Lenzerini, with his wife and child by his side, stopped by Gumapac’s house en route to a visit to see the volcanic activity down by Kalapana. Gumapac has worked closely with Dr. Sai on separate matters involving the U.S. occupation which have also been presented at the international level.

The Commission of Inquiry is not a Tribunal, Lenzerini told those assembled in Puna. There will be no judgement, only an evaluation of the facts under the perspective of international humanitarian law.

It is important that the determinations be made public, Lenzerini said, “so it will be possible to spread the knowledge of the history and of the truth of the Hawaiian kingdom within the international community,” since Larson and the Kingdom have agreed to make the findings public.

Next will be the nomination of an appointing authority who will be tasked with nominating the three-member Commission of Inquiry.

The appointing authority must be impartial, competent, and have “a very definite idea about who can be the best personalities to serve as members of the commission,” Lenzerini said.

These rules of international humanitarian law apply to military occupations even where there has been no resistance, as happened in Hawaii at the end of the 19th century.

The Commission of Inquiry will have the task to give an opinion on this point, according to Lenzerini: What is the position of the Hawaiian Kingdom under international humanitarian law, and what are the duties of the Hawaiian Kingdom towards its citizens, “first of all Mr. Larsen, then its citizens living here in Hawaii or abroad, and even aliens. Aliens who come here and are subject to the laws enforced in this land.”

Several rules of international humanitarian law are applicable, Lenzerini says, including pillaging, the obligation to administer the laws of the occupied country, deprivation of public property, and violation of a fair trial, among others.

Lenzerini cautioned those in attendance that “sometimes it is quite hard to guarantee the effectiveness of the rules” of international law.

“There are no avenues to claim respect,” Lenzerini said. Especially when – in this case, the United States – an “indispensable third party” is not a part to the agreement for international arbitration and cannot be bound by a commission’s rulings.

Lenzerini says that a fact finding is different, however. Although there will be no determination, Lenzerini believes the inquiry will provide a forum for the stories of Hawaii’s people to be known by the international community. He expects there could be an opportunity to provide testimony and evidence, depending on the will of the Commission that is formed.

These things usually last for quite a long time. “Talking about years,” Lenzerini said.

According to its website, the Permanent Court of Arbitration (PCA) is “an intergovernmental organization established by the 1899 Hague Convention on the Pacific Settlement of International Disputes. The PCA has 121 Member States.” The PCA is headquartered at the Peace Palace in The Hague, the Netherlands, and “facilitates arbitration, conciliation, fact-finding, and other dispute resolution proceedings among various combinations of States, State entities, intergovernmental organizations, and private parties.”

Issues that Matter: Permanent Court of Arbitration, International Commission of Inquiry – Larsen case

Dr. Lynette Cruz, host of “Issues that Matter,” interviews Dr. Federico Lenzerini, Professor of International law from the University of Siena Law Department, Italy, and Dr. Keanu Sai, political scientist and lecturer at the University of Hawai‘i, on the topic of proceedings that have been initiated at the Permanent Court of Arbitration stemming from the Larsen v. Hawaiian Kingdom arbitration case.

Dr. Sai, as Agent, and Dr. Lenzerini, as Counsel and Advocate, represent the Hawaiian Kingdom in these proceedings.